Re: Public Domain

From: Timothy Phillips <hrothgar[_at_]telepath.com>
Date: Mon, 5 Oct 1998 12:34:56 -0500 (CDT)

Joli Sandoz <sandozj[_at_]evergreen.edu> wrote:

>

> I'm putting together an anthology, and want to use material pub-
> lished in the U.S. in both book and magazine form before 1923.
> Can I assume this material is in the public domain; that is, is
> there any way a book or magazine article first published more
> than 75 years ago could not be in the public domain? If so, how
> can I check the status of the piece? And finally, is the public
> domain status of this type of material affected when it is
> reprinted? (I want to use an excerpt from a book published in
> 1895 which has been reprinted twice since 1985.)

Joli:

Here are some thoughts on your question. Please remember that, as usual on this listserv, NOTHING in this post is legal advice, NOTHING in this post should be taken as establishing a lawyer- client relationship, and so forth.

The only way I can imagine that something published in the U.S. before 1923 would NOT be in the public domain would be a situation in which the publication were UNAUTHORIZED, the first authorized publication occurring after 1922. I think this would be unlikely if the books and magazines that are your sources were from reputable publishers. I don't know of any case in which someone relied on publications that were older than the full term of copyright (original + renewal) only to find that the publications being relied on had been unauthorized. Maybe someone else on this list knows of such a case.

The problem of unauthorized publication is slightly more likely to cloud the copyright status of songs and short anecdotes--"contagious" works that can become disconnected from information about their origins through oral circulation. For example, the words to "Happy Birthday" were registered for copyright in 1935, yet they appeared in some song collections of the 1920s, apparently without Ms. Hill's knowledge or consent. The flip-side of the lost-origin problem in songs and anecdotes is the problem of false claims. On the one hand, a writer's song might circulate orally and be mistaken for a folk song or a song by another composer. This happened to "Silent Night" for a time. But on the other hand, if a song was not well known before a certain time and its origins are obscure, someone with the right geographical and chronological credentials might falsely claim to have written it. This seems to be what happened in the case of "Home on the Range" (Southern Music Company v. Bibo-Lang, 26 USPQ 321, 26 USPQ 324, SDNY 1935), and in the case of the words to "The Wreck of the Old 97" (George v. Victor Talking Machine Co. 17 USPQ 133, 20 USPQ 107 and six more years of litigation round to 42 USPQ 346 (3rd. Cir. 1939) and on to certiorari denied by the Supreme Court.)

I can think of two other techniques, besides the making of claims of unauthorized publication, that litigants might use to complicate others' use of the public domain. One is to assert trademark rights; the other is to assert that the published work is a derivative version of a work which is not yet in the public domain. I can't think of any case where the assertion of trademark rights prevented the republication of a public domain work altogether, though the trademark claims might impose conditions on the packaging of the reprinted work. I leave it to the lawyers on the list to confirm, deny, or modify this hunch. The claim of a still-protected (because unpublished) underlying work was recently made for the film McClintock! and, as I read the case, was rejected by the court on the grounds that, insofar as a derivative work incorporates an underlying work, then to that same extent the underlying work is published through the derivative work. Maljack v. UAV/Batjac v. Goodtimes, 964 F.Supp 1416 (C.D. Cal 1997). If I were Tsar of all the Copyrights, the same logic would apply to all cases of derivative works based on unpublished or subsequently-published underlying works. The cases in which the underlying work was published BEFORE the derivative work and the underlying work's copyright was renewed and still in force while the derivative work's copyright lapsed due to non-renewal would not apply to the situation you describe in your question since you are reprinting works that are more than 75 years old. Again I leave it to my list mates to add any comments they think relevant.

So I think it unlikely that anyone would give you any trouble over reprinting pre-1923 works, but if I were in your position I'd seriously consider consulting a copyright lawyer who has had experience dealing with publishing issues. In the end I might not consult the lawyer after all, but I'd seriously consider it.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Mon Oct 05 1998 - 17:33:20 GMT